Is a Legislature that is not allowed to legislate still a Legislature?

Is a Legislature that is not allowed to legislate still a Legislature?
United Daily News editorial
translated by Bevin Chu
May 24, 2007

The Democratic Progressive Party (DPP) has resorted to brute force to prevent the Republic of China legislature from taking a vote on pending legislation. Legislative Speaker Wang Jyn-ping has declared that he "absolutely will not make use of police power" to enforce order within the legislature, ensuring that the General Budget and the Organic Law for the Central Election Commission will remain stalled and without hope of resolution.

Legislative Speaker Wang Jyn-ping's unwillingness to use "police power" to maintain order within the legislature is naturally motivated by personal political calculations. But when he says he has no legal basis for invoking "police power" within the legislature, and that for him to do would amount to the imposition of a police state, that is highly questionable.

First of all, the term "police power" cannot be found in the current laws. But Article 7 of the Legislator's Conduct Act prohibits occupying the chairman's podium and obstructing the conduct of official business and other such behavior. If that happens, Article 3 of the Organic Law of the Legislative Yuan stipulates that the Legislative Speaker has the legal obligation to maintain order within the legislature. How is the Legislative Speaker to maintain order? Naturally he cannot rule out the option of ordering Legislative Yuan Security Guards to prevent the occupation of the chairman's podium and the obstruction of official business. Otherwise, how will the question of whether legislation will be voted on to be settled? By physical combat between ruling and opposition party legislators?

If, as chairman of the legislature, the Legislative Speaker finds it necessary to order Legislative Yuan Security Guards to prevent the occupation of the chairman's podium and the obstruction of official business, does that really amount to the imposition of a "police state?" Of course not. Legislative Yuan Security Guards would merely be fulfilling their duty under the direction of the Legislative Speaker to maintain order within the legislature. This is fully consistent with the principle of legislative autonomy and self-regulation, and the spirit of a constitutional republic. The "police powers" entrusted to the legislative speakers of other democratic nations, in accordance with the rule of law, is if anything, considerably greater. Current law does not contain the term "police power." But based on the Legislator's Conduct Act, the Organic Law of the Legislative Yuan, not to mention the rule of law conventions of democratic nations the world over, for a legislative speaker to maintain order by mobilizing Legislative Yuan Security Guards is a legitimate action. By contrast, if a legislative speaker abets behavior such as occupying the chairman's podium and obstructing official business, if he sits and watches as the legislature is paralyzed and legislators are denied the opportunity to vote on pending legislation, that amounts to an affront to constitutionalism and the rule of law, and a dereliction of duty.

The mobilization of Legislative Yuan Security Guards to maintain order, must of course accord with due process and the principle of proportionality. This is hardly a matter of controversy. The only real issue is timing. The Legislative Yuan must not be paralyzed. Nor should security guards be called in as a matter of routine. If a controversial bill has been introduced, and the ruling and opposition parties cannot reach agreement through negotiation and compromise, the next step is to put the bill to a vote, and allow the public to deliver their verdict during the next election. If any political party or political camp insists on preventing a vote by means of brute force, then it has already departed from democratic norms. If those who have resorted to brute force repeatedly ignore warnings to cease and desist, then the legislative speaker must not rule out the use of security guards to maintain order. Otherwise, those who prevent a vote on a bill by means of brute force because they oppose its passage, will be hijacking the legislature, hijacking democracy, hijacking the entire nation and its citizenry. Is a legislature that is not allowed to legislate still a legislature?

The deadlock over the Organic Law for the Central Election Committee and the General Budget is a perfect example. The opposition party has clearly indicated that it cannot trust the Central Election Committee (CEC) as it is currently constituted, that it cannot expect fairness from a wholly owned tool of the executive branch. The ruling party, meanwhile, has indicated that absolutely will not make any concessions. If the ruling party genuinely believes that the opposition party's bill is unconstitutional, it can demand a constitutional interpretation. The National Communications Commission Bill is just such an example. The opposition party is using traditional means of checking and balancing the government, by exercising its constitutionally delegated budgetary authority to bargain for a fair and impartial Central Election Committee. The Democratic Progressive Party (DPP) on the other hand, is determined to prevent the passage of the Organic Law for the Central Election Committee, even if it means preventing passage of the General Budget. Both sides have put their cards on the table. The next step should be to allow the legislature to vote on the measures, and to allow voters to make a political judgment about who was right during the next election. At this point, what reason can the DPP have to not put the measures to a vote? The ruling and opposition parties have reached an impasse. To defend democracy and constitutionalism, the legislative speaker must do everything in his power to ensure that the legislature functions normally. This is the normal and reasonable response. If he sits and looks on idly at a legislature in paralysis, then that is a dereliction of duty.

Over the past several months the Legislative Speaker has repeatedly failed to uphold the right of the legislature to vote on legislation. Can he still be considered qualified for the role of Legislative Speaker? The Legislative Speaker can of course choose not to invoke "police powers." But he remains under obligation to uphold the right of the legislature to vote on legislation. How can he cite a "refusal to make use of police power" as a pretext to nullify the legislature's right to vote on legislation?

Wang Jyn-ping said that "Rather than invoke police powers, I would rather resign as legislative speaker." What Wang Jyn-ping should have said is "If cannot uphold the legislature's right to legislate, I should resign as legislative speaker."

Not allowing the legislature to legislate is to nullify the legislature. It is to nullify democracy and constitutionalism. The situation is clear. The ruling party has paralyzed the legislature for a reason. The legislative speaker has aided and abetted the ruling party's paralysis of the legislature for a reason. In addition to an incompetent and corrupt government, we now have a paralyzed legislature. Is this the political reality the people must endure?

Original Chinese below:

不能表決的立法院還是立法院嗎？
【聯合報／社論】
2007.05.24 04:04 am

民進黨以「行動」阻擾立院表決，立法院長王金平宣示「絕不動用警察權」，總預算案和中選會組織法的政治僵局仍然無解。

王金平院長願不願意動用「警察權」，自有其個人的考量及判斷；但他指立法院議場內動用「警察權」於法無據，並稱動用警察即成了警察國家云云，卻有商榷餘地。

首先，純以「警察權」這個名詞而言，確實並未出現於現行法律中。但立法委員行為法第七條明文禁止占據主席台、阻擾議事進行等行為；倘若發生這種情況，立法院組織法第三條亦規範了院長維持立法院秩序之法定義務。院長如何善盡維持秩序的法定義務？當然不能排除指揮議場警衛制止占據主席台、干擾議事等行為；否則，難道聽憑朝野立委打架定勝負，以決定議案表決能否進行？

立法院長擔任議事主席，必要時指揮議場警衛制止占據主席台、干擾議事等行為，是否即成警察國家？答案當然是否定的。因為，議場警衛是在院長指揮之下行使職務，且目的僅在維持議場秩序，符合國會自律原則，自亦符合民主憲政的精神。世界各民主法治國家賦予國會議長的「警察權」，相較於我國，恐怕尚有過之。因此，現行法律雖無「警察權」這個名詞，但從憲政法理乃至立法委員行為法、立法院組織法等法律的規定，以及世界民主法治國家的慣例等等以觀，議長維持議事秩序不得已時動用國會警衛，乃是合法的舉措；反之，議長放任占據主席台、阻擾議事的行為不管，坐視國會癱瘓而喪失表決機制，恰是違反憲政民主、怠忽職守的表現。

動用議場警衛以維持秩序，在程序上自須注意手段合乎比例原則，此為當然之理，無待深論。有待探究者，乃是時機問題。聽憑立法院癱瘓固然不應該，但議場經常警衛充斥當然也很不正常。以目前立法院運作實況而言，當某項政治性議案，朝野已盡協商之能事，雙方已無妥協的空間時，唯有付諸表決，然後各自接受選民判斷一途；此際，倘若有某黨或某陣營卻堅持阻撓表決，這已經脫離了民主的軌道，主席一再勸解，歷經多次院會仍然無解時，就應當是不排除動用警衛維持秩序的時機。否則，反對並阻撓表決的一方，豈不是以暴力挾持了國會、挾持了民主，也就等於挾持了整個國家和人民？試問：不能表決的國會還能稱作國會嗎？

中選會組織法和總預算案的僵局正是最佳案例。關於中選會，在野黨已充分表明對於目前中選會由行政權一手主導的組織方式不信任、不能期待其公平；執政黨亦表明堅不退讓。其實，執政黨主張在野黨的立法違憲，並非沒有救濟管道，亦即聲請釋憲（如國家通訊傳播委員會之先例）。現今的情勢卻是：在野黨以國會制衡政府的傳統手段，亦即杯葛預算，以求換取中選會案；民進黨則不容中選會案通過，於是寧可使預算案不能通過。如此，雙方的立場已至底線，並皆願意、且已經訴諸選民政治判斷；到此地步，民進黨又有什麼理由干擾議事不讓議案付諸表決？而立法院長盱衡朝野協商以及院會的僵局，為求民主憲政的實現，必須盡一切可能以維持國會表決機制之運作，始為正常合理的反應；若坐視立院癱瘓，不能表決，則是有失職守。

試問：立法院長竟在連續幾個月數次院會中不能維護立院的表決權，這還算是稱職的立法院長嗎？立法院長當然可以不動用「警察權」，但他亦當然必須為維護國會的表決權負責，又豈能以「不動用警察權」為藉口而斷送了國會的表決權？

王金平說：「若要我動用警察權，我寧可辭任院長。」其實，王金平應說：「若不能維護國會表決權，我就辭任院長。」

不容表決，就是否定國會，就是否定民主憲政。情勢已十分清楚，執政黨癱瘓立院有其目的，立法院長放任癱瘓當然也有其目的。而既有無能又貪腐的政府，如今再加上癱瘓的國會，難道這就是國人必須忍受的政治現實！